Suits on faster track to high court

Friday’s federal court ruling against a key provision of the health care reform law makes it almost certain the Supreme Court will decide the law’s constitutionality in the 2012 term.

If the high court decides to take up the case, it probably won’t rule until June — ensuring that President Barack Obama’s signature law will be the center of another very public debate just five months before the election.

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The court has two very strong reasons to take the case now. First, there are two circuit courts that have ruled in opposite directions on the constitutionality of the law's individual mandate. And second, because the Obama administration lost in the latest ruling, it is going to be the one filing the appeal. The Supreme Court rarely turns down such requests from the federal government, especially on an issue with the scope of the health reform law.

On Friday, the 11th Circuit Court of Appeals said the reform law’s requirement that nearly all Americans buy insurance is unconstitutional. The ruling came six weeks after the 6th Circuit said in a nearly identical suit that the individual mandate was constitutional. The 4th Circuit is expected to rule soon on two similar cases.

The Obama administration has said it would appeal any rulings it lost in the more than 30 cases filed against the health law. The Department of Justice has 90 days to decide whether it wants to appeal directly to the Supreme Court or ask the entire 11th Circuit Court of Appeals to review the case first in an en banc hearing.

The en banc hearing would merely slow down the appeal process, since the losing party is all but certain to appeal to the Supreme Court. So the administration could try to push a Supreme Court ruling past the 2012 election by asking for the en banc hearing — but there wouldn’t be much of a point otherwise, since they’re not likely to get a better ruling from the full court.

"I would be surprised if they request a hearing en banc just because the 11th Circuit as the whole is quite conservative," said Elizabeth B. Wydra, chief counsel at the Constitutional Accountability Center. "I’m not sure what they would have to gain there."

Only five of the 11 active judges on the 11th Circuit were appointed by Democrats, and one of them — Judge Frank Hull — has already ruled against the individual mandate.

There are fewer upsides for Obama than for his eventual Republican opponent if the court decides the case this term. Republicans are so strongly opposed to the law that even the Supreme Court is unlikely to quiet their criticisms, no matter how it rules.

A court decision striking down the mandate would energize them. Already, after last week’s ruling, GOP presidential candidate Michele Bachmann claimed credit for helping build the case against the mandate.